pretty extensive jurisdiction, was proverbial for its venality and rapacity. Lord Fountainhall records a somewhat amusing instance of the manner in which this honourable Court exerted its powers to serve particular purposes. John eighth Lord Elphinstone was debtor by bond to William Forbes of Tolquhan in the sum of 10,000 merks, which he was not very willing, or rather perhaps, was unable to repay. Luckily for him, Forbes, who was a man of somewhat irritable temperament, quarrelled with his clergyman, Mr. John Strauchan, and, in the heat of the moment, gave him a cuff." Such a chance as this did not escape the vigilance of the debtor. Forbes was cited before the Privy Council, where, after the fashion of a modern election committee, the result had been already settled, and he was adjudged to pay a fine of 10,000 merks to the Crown, five hundred merks to Mr. Strauchan, and four dollars to every witness adduced against him, and the better to enforce implement of the sentence, he was ordered to be imprisoned till he had obeyed it. Elphinstone had previously arranged that he was to get the fine, and as it was the precise sum in which he was indebted to Forbes, he was thus enabled to pay his debt without putting his hand into his pockets at all. Fountainhall candidly informs us that all this "was only done to pay a bond of the like sum which he had of my Lord Elphinstone, who has got a right to the fine." Lord Fountainhall in his Chronological Notes, p. 247, refers to a lawsuit between Mr. Robert Pittilloch, advocate,28 and Mr. Aytoun of Inchdairnie, the son-in-law of Lord Harcarse, one of the judges, in which the former did not hesitate to call the learned lord "a bryber," for which he (Pittilloch) was apprehended. Harcarse was removed. the ensuing day from the bench, and it does not seem that anything was done to his opponent, who published an account of the whole proceedings under the following singular title :-" Oppression under the Colour of Law; or, My Lord Harcarse his new Praticks: As a way-marke for peaceable subjects to beware of pleying with a hot-spirited Lord of Session, so far as is possible when arbitrarie Government is in the Dominion-Proverbs xx, verse 21, An inheritance may be gotten hastily at the beginning, but the end thereof shall not be blessed." 29 The author did not venture to print this violent attack in Edinburgh, and accordingly it bears the imprint of London 1689. Of course it would be unfair to take a narrative of this description prepared by the party aggrieved, as evidence of the corrupt practices of Lord Harcarse. It is too probable, however, that the accusation was not without some foundation; for laying aside entirely the "habite and repute" character of the judges, it is remarkable that Fountainhall, while alluding to the lawsuit and the accusation, neither states the latter to be false, nor ventures in his decisions to report the former. There is, besides, one fact mentioned in the pamphlet, which, if true, is somewhat startling, namely, that when the cause was called by Lord Drumcairn, who was the Ordinary, “my Lord Harcarse compeared with his Purple Gown, and debated the case as Inchdairnie's advocate." The notion of a judge in his robes debating as counsel the case which he might afterwards be called upon to decide, is not very reconcileable with modern notions of propriety. Pittilloch entered an appeal, and from no notice being taken in the Parliamentary Journals of its fate, in all likelihood the suit was compromised.30 31 But a much better authenticated instance of judicial injustice and tyranny has been preserved in the sederuntbook of the parish of Dalry. It would seem that a Dr. Johnston had by a codicil to his will, left the sum of £3000 towards the establishing a grammar school in the parish of Dalry. Payment of this sum was resisted by a Mr. Joissy,32 one of the executors, and an action before the Court of Session was thereupon brought at the instance of the parish. The defender had enlisted under his banners Alexander Gibson of Dury, one of the principal Clerks of Session, and by their joint influence they were enabled to secure a certain portion of the judges. On the other hand, the Earl of Galloway patronized the heritors, and by his and the other means resorted to, the Bench became equally divided. 33 Unfortunately for the parish, the Lord President had been gained over by Joissy, and he uniformly contrived to manage matters so judiciously, that the cause was never called in the absence of the supporters of the defender. It so happened, to use the words of the report, that the Court having "accidentally appointed a perrempter day, about the beginning of February, 1704, for reporting and decyding in the cause, both parties concluded that the paroch would then gain it, since one of Mr. Joissy's lords came to be then absent. For as my Lord Anstruther's hour in the Outer-House was betwixt nine and ten of the clock in the morning, so the Earl of Lauderdal, as Ordinary in the Outer-House, behoved to sit from ten to twelve in the forenoon for by the 21st act of the fourth session of the first Parliament of King William and Queen Mary, its statuted expressly, that, if the Lord Ordinary in the Outer-House sit and reason or voat in any cause in the Inner-House after the chap of ten hours in the cloak, he may be declined by either party in the cause from ever voating thereafter thereintill Yet such was the Lord President's management, that so soon as my Lord Anstruther returned from the Outer-House at ten of the cloak, and that my Lord Lauderdal was even desired by some of the Lords to take his post in the Outer-House in tearms of law: Yet his Lordship was pleased after ten to sit and voat against the paroch, the President at that junctur having put the cause to a voat." Of this irregular conduct the parish found it their duty to complain; and John Menzies of Cammo, an eminent lawyer, prepared and boxed a declinature of the Lord Lauderdale, in name of Mr. Ferguson of Cairoch and the other heritors, stating the violation of the Act of Parliament by his Lordship voting in the Inner-House after ten o'clock, when he ought to have been sitting in judgment in the Outer-House. This measure had been recommended by some of the judges who were in the interest of the parish, and who had objected to his Lordship's sitting and voting. The next morning the President came to the Court in a tremendous rage, insisting that every individual in any ways connected with the declinature should be punished. Upon this the client, counsel, and agent, were ordered to be cited as criminals; the former escaped, having taken horse about an hour before the macer came to summon him; the latter appeared, but "the speat was so high against the paroch and them all the time, that they behooved to employ all their friends, and solicit a very particular Lord that morning before they went to the house; and my Lord President was so high upon't, that when Cambo (Cammo) told him that my Lord Lauderdal, contrair to the Act of Parliament, satt after ten a cloak, his Lordship unmannerly said to Cambo, as good a gentleman as himself, that it was a dd lye.” Upon this Menzies and the agent offered to prove their averments, but the Judges ordained them to be instantly incarcerated, while they deliberated what punishment should be inflicted. After some consultation the two gentlemen were called to the bar "as malefactors," and were ordained to beg Lord Lauderdale's pardon, which they accordingly did. No redress could by possibility be obtained for this outrageous procedure, for, as the author of the report says, "the misery at that time was, the Lords were in effect absolute, for they did as they pleased, and when any took courage to protest for remeid of law to the Scotch Parliament, they were seldom or never any redress gott there, all the Lords being still present, by which the Parliament was so overawed, that not ane decreit among a hundred was reduced." Amongst the more influential judges, about the period of the preceding decision, was Lord Whytlaw, who had a very short time before his death been made JusticeClerk. He expected the Presidency, but the superior influence of Dalrymple had prevailed. Which side he took in the parish dispute alluded to, does not appear. His character is thus portrayed by Lockhart, who, after stating he owed his elevation to whiggery, remarks: "He soon displayed a forward haughty mind. Betwixt man and man, where he had no particular concern, he was just, but extremely partial where his friend or his own politics interfered. He had a sound solid judgment, but all his actions were accompanied with so much pride, vanity, ill-nature and severity, that he was odious to everybody." His demise, which occurred in the month of December 1704, gave rise to a number of epitaphs, by no means very flattering to his memory. Some of these jeux d'esprit are preserved in the collection of Scotish Pasquils so often referred to. "34 One of them, which has considerable spirit, we insert. Old Nick was in want of a Lawyer in Hell To preside o'er the Court there of Session, So old Whytlaw he took, for he suited him well For tyranny, lust, and oppression. 'Twixt the Devil and Whytlaw the poor wretches damn'd, Will be sore put about in that hot land, For now since the Justice-Clerk got the command |